The stipulation regulated in Article 34 Paragraph (2a) letter b of the Act No. 28 Year 2007 about the third ammendment on Act No. 6 Year 1983 on General Regulation and Tax Procedures (UU KUP) did not regulate about the restriction of The Supreme Auditor’s authorities to conduct audit on State’s income from tax sector. The stipulation is a regulation about the exception of prohibition for tax officers and experts to provide data and information about taxpayers’ information if the data and information were aimed for State’s or Court’s importance. With that stipulation, the tax officers and experts to give data and information to the Supreme Auditor for audit intention, will not be given criminal sanctions.

That was one of points of the statement given by the Minister of Finance, Sri Mulyani Indrawati and a member of the Commission III of the Indonesian House of Representatives, Patrialis Akbar when giving information on the trial of UU KUP at the Plenary Court Room of The Constitutional Court (MK), Jakarta, Tuesday (19/2).

Nevertheless, Sri Mulyani added, the stipulations on UU KUP set a requirement that the tax officers could provide the information on taxpayers after getting the permission in form of stipulation from the Minister of Finance. That was, according to Sri Mulyani, because the information from or about Taxpayers was the secrets of the Taxpayers themselves, which could be given or provided to other parties only with the permission of the owners, which were the Taxpayers themselves. ”So, basically opening the secrets of the Taxpayers is against the law, a mistake, and the law threatens with sanctions for those who did that,” explained Sri Mulyani.

The permission given by the minister of finance, continued Sri Mulyani, was an effort so that the tax officers and experts could undergo the forbidden action, but the action was released or excepted from the sanctions.

Furthermore, Sri Mulyani also explained that the stipulation was according to the norms regulated as the General Stipulation on Criminal Law, that was Article 51 paragraph (1) of the Penal Code “Whoever committed an action to carry the official instructions given by the authorized Officer, can not be given sanctions”. The highest rank of the authorities and responsibilities for the tax officer, or in the governmental organisation area where he served the duty, was the Minister of Finance.

”That is the reason why Act No. 28 Year 2007 hand over the duty to settle the permission for exception to the Minister of Finance. Not to the Minister of Religious Affairs or the Minister of State’s Secretary for instance, because they are not in the highest rank for the tax officers mentioned,” exclaimed Sri Mulyani.

Even though so, according to Sri Mulyani, the Supreme Auditor had wrongly interpretted the stipulations in the UU KUP. The phrase “set by the minister of finance” on Article 34 Paragraph (2a) letter b of UU KUP which was a form of permission given by the minister of finance to the tax officers and experts to provide data and information which were actually forbidden to be given to other parties besides the tax institutions, had been interpreted as a form of restriction from the minister of finance to conduct the Supreme Auditor’s authority to check the tax income.

In that Article, she continued, the minister of finance did not regulate and give written permission to State’s Body, like the Supreme Auditor, but to regulate and give written permission to tax officers, or experts appointed by the Tax General Director.

”Even from that side actually the Constitutional Court could reject or not accept to examine the case that is trully, clearly–or cetha wéla-wéla (a javanese saying – ed.) said the Javenese–from the motive and the kind of complaint it can not be categorised as object of constitutional dispute problem, not a subject matter of constitutionality,” explained Sri Mulyani which seemed to argue the legal standing of the Supreme Auditor as a Petitioner.

To support the information from the Government, the Parliament through their Legal Counsel, Patrialis Akbar also emphasized that the phrase ”set by the minister of finance” contained in the Article 34 Paragraph (2a) letter b principally was not meant to restrict the constitutional authorities of the Supreme Auditor to conduct examination, process and be responsible to the State’s finance. According to the member of Commission III, the phrase contained more meaning that only officers and/or certain experts that could be set to give indormation to state’s body or governmental institution in conducting examination, processing and responsible to the State’s finance.

Meanwhile the Minister of Law and Human Rights, Andi Mattalatta said that the meaning “free and independent’ owned by the Supreme Auditor did not mean that it could be accessed without considering other stipulations which was also the implemention of the  1945 Constitution, the same thing as UU KUP that had a frim ground in Article 23A of the 1945 Constitution.

“The Supreme Auditor is not an independent institution in carrying out the task, but as a subsystem in state’s organising system. Independent does not mean to be alone,” said Andi.

Violating Tax Payers’ Rights
The trial that lasted for almost a whole day was also attended by the management of Indonesian Chamber of Industry and Commerce (KADIN) that requested the Constitutional Court to make them as a related party. When gien the opportunity to give opinions, the Vice of General Chairman of KADIN for the Field of Tax Public Field for Monetary System and Fiscal, Hariyadi Sukamdani, told that if the Supreme Auditor had access to the data and information of the Tax Payers then the guarantee and protection for the secrecy of data and information categorised as personal would be gone.

“if the Supreme Auditor had the access to examine the data then they found difference in the calculation with the Tax General Director, the Supreme Auditor could recommend a recounting. That would cause disruption in the tax layers and a law uncertainty also causing loss on the Tax Payers,” said Hariyadi.

Hariyadi also added with the authorities they had, the Supreme Auditor could publish the data and information of the Tax Payers whose secrecy was guaranteed by law. That according to Hariyadi meant violating the constitutional rights of Tax Payers protected by Article 28G Paragraph (1), Article 28H Paragraph (4), and Article 28I Paragraph (4) of the 1945 Constitution.

The trial was also scheduled to hear information from experts from the Petitioner’s side, Faisal Basri, S.E. and Dr. Iman Sugema. However, due to the length of the trial also the intention of the Government to present experts, then the agenda was suspended to the next trial. The trial was also suspended upon the request of the Petitioners who needed to discuss with their experts to set the schedule of the next trial.

“In these five years, this is the first time there is a suspension in the trial of the Constitutional Court for lobbying. It means the case being on trial is very important,” said the Chief Justice of the Constitutional Court, Jimly Asshiddiqie. [ardli / Yogi Djatnika]